Wednesday, June 27, 2018

Justice Kennedy's Retirement

by Michael Dorf
Today's announcement that Justice Kennedy is retiring has led immediately and understandably to speculation about how the process for replacing him will play out. This strikes me as silly. The GOP has 51 votes in the Senate. Mitch McConnell will make sure that a new justice is confirmed before the midterm elections or, in the worst-case scenario for Republicans--i.e., should the confirmation somehow be delayed until after the midterms and the Democrats take the Senate--in a lame-duck session. The new justice will certainly be at least as conservative as CJ Roberts, so regardless of how this goes, the Chief Justice is now the center of the Court.

Here are a few very preliminary observations:

(1) I want to express my personal gratitude to Justice Kennedy for hiring me as a law clerk for the 1991-1992 Term. It was the greatest experience a young lawyer can have, and he was a terrific boss. Although I worry for the Republic, I do not begrudge Justice Kennedy his retirement. All of us make the decision whether and when to retire based on a variety of factors, some of them personal. It would not be fair to ask Justice Kennedy--or anyone--to stay in the job past the point where he felt he could do it the way he wanted to.

(2) I have been highly critical of a great many opinions and dissents that Justice Kennedy authored or joined over the years--especially during the last few weeks, when he seemed to take a turn to the right. Some observers speculated that he was giving up or bowing out, thus signaling his retirement. That's possible, I suppose, but it's also possible that Justice Kennedy was calling them as he saw them and that the particular mix of cases this Term pulled him to the right rather than the left.

(3) How far will the Court now move? That's hard to know. I think that there is now a very substantial chance that the abortion right will be narrowed or even eliminated. That's of tremendous importance, obviously. So too is the quite serious possibility that race-based affirmative action will be deemed unlawful. I think it's less likely that the gay rights decisions--Justice Kennedy's signature contribution--will be overruled. Partly that's because I see Chief Justice Roberts as unlikely to want to go there, but also it's because on these issues the country largely followed where Justice Kennedy led.

(4) More broadly still, Justice Kennedy leaves behind a legacy of libertarianism and constitutional patriotism. Even when I disagreed with Justice Kennedy (which was often) I admired his sincerity. He did not like to be called the "swing justice," because he saw himself as applying principles even-handedly rather than swinging one way or the other. That said, there were fewer easy cases for Justice Kennedy than for just about any of the colleagues with whom he served. Deciding hard cases was a burden for him, but one he willingly bore because of his love for the country.

As an octogenarian I can understand and appreciate Justice Kennedy's decision to retire. As a progressive, I appreciate his efforts to address dignity that many have been denied for too long. I question his legacy of libertarianism as I question most libertarians of their values. I do not question his patriotism, although I question that it is always constitutional and/or benefited the country I'm sure he loves, especially regarding decisions this June. The expression "what have you done for me lately?" comes to mind, as perceived "missteps" just before retirement may be the legacy that he leaves behind in the view of some, perhaps many as time goes on. In his retirement Justice Kennedy may observe how the "Trump Court" may look upon his efforts on dignity and personally be concerned with whether his recent decisions may have enabled Trump to continue on his seemingly destructive path (that perhaps Justice Kennedy recognized as a matter of concern in a recent opinion).

I watched Mike and other panelists on the PBS Newshour discussing Justice Kennedy and his legacy. There were some differences among the five panelists. Over at Balknization Mark Graber's post sets forth in the closing paragraph his view of Justice Kennedy's legacy. We'll be exposed to many more Kennedy legacy views over the next several days, positive and negative. I'm interested in polling on the Court after Kennedy's replacement is seated to compare with polling on the elective branches. When Justice Scalia passed on, there were many views on his legacy, some good some bad. But with retirement, Kennedy will become aware of what others think his legacy is, and some of it may not be enjoyable to him. I don't think it's the fact that he is retiring that might make this contention, rather that it is the fact of Trump. And that may be unfair to Justice Kennedy. Query: Could Justice Kennedy withdraw from retirement prior to the date set for such?

I don't think it's inconceivable, in the current environment, that an extreme enough conservative could one a couple of Republican votes and fail to be confirmed. If it is a mainstream figure, this is unlikely.

It is expected that Trump will nominate an originalist to replace Justice Kennedy. Mike in his recent debate with Randy Barnett pointed out that Barnett, an original public meaning originalist, sometimes reverts to earlier versions of originalism. The Senate committee hearings on Trump's nominee should focus on exactly which version of originalism he/she follows. The nominee may be a "Cafeteria Originalist" or perhaps a "Rainbow Originalist." Or with the backing of The Federalist Society may be an "Anti-Federalist Originalist."

It seems to me that the battlefield (especially on cultural issues) is about to move much more onto majoritarian terrain - state legislatures and Congress. As I understand it, Congress could statutorily enshrine both Roe and Obergefell.

To that end, the nation's shifting demographics should create leverage in this direction, if people actually turn out to vote.

As a followup to my 7:40 AM comment, note Randy Barnett's post at the VC addressed to non-originalists regarding who they might want to replace Justice Kennedy:

"(a) A self-described living constitutionalist/multiple modalities/common-law-constitutionalist/moral-readings--pick your fave--justice who shares President Trump's political and moral views or(b) A self-described originalist?"

Note the detail Randy includes regarding his (a) on "a self-described living constitutionalist/...", with his bare (b) 'self-described originalist". Randy knows there are many varieties of originalism, many of which have been significantly demeaned as being far from objective that are based on original intent, original expectations, original understanding, which led to Randy's version of the New Originalism's original public meaning that includes a "spirited" "construction zone" when the original public meaning is not clear. Perhaps Randy has faith in all versions of originalism for which I have suggested names in my comment. Those interested might check out the video of the debate between Randy and Mike where Mike points out that Randy utilizes many versions of originalism from time to time other than his original public meaning version.

on Trump's relationship with Justice Kennedy's son as a big mucky-muck at Deutsche Bank that assisted Trump Enterprises under circumstances that have been questioned. Will Justice Kennedy's timing be intertwined with this by cynics, or, what we know of Trump, reality, in assessing Kennedy's legacy?